MAY 22 — The Bar Council and the Malaysian Bar (“the Bar”)
have been criticised recently as being pro-opposition. This is because of the
Bar’s press statements and its extraordinary general meeting resolution
regarding the police brutality shown at the Bersih 3.0 sit-down rally. The
common theme adopted by critics of the Bar is that the Bar was not fair, or
even-handed, as the Bar were more critical of the police than it was of the
other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed
by fear or favour” which was also published in the Sunday Star on May
20, 2012. In summary, he says the following:

1. The Bar in condemning the police brutality must be equally aggressive in its
condemnation against the protestors who “behaved like rioters and anarchists”.

2. The Bar had prejudged the issues by passing the resolution because by doing
so “the Bar had already come to a conclusion that all those acts listed therein
had been committed by the police”.

3. The Bar should have demanded an apology from Datuk Seri Anwar Ibrahim because
“it was his men who were reportedly the ones who removed the barrier” which was
“the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but
also addresses others who have been critical of the Bar on this issue. We intend
to address the second criticism first, then the third and first criticisms. Our
reason for this will become apparent as our reply develops.

The Bar did not prejudge the issues

In his second criticism, Roger says that the Bar should only pass the resolution
condemning police brutality after a finding has been made by an independent body
such as Suhakam. However, Suhakam relies on the evidence of witnesses, and often
conducts a hearing several months after the event. The Bar based its stance and
resolution on the observations of 80 lawyers who formed a team of observers of
events during Bersih 3.0. The purpose of assembling and mobilising this
monitoring team was precisely so that the Bar would be able to rely on their
eyewitness accounts, and not those of friends, media, the police, or post-event
photos or videos. The observations of the monitoring team were recorded and
compiled within hours on the day itself, and thereafter fine-tuned and
completed. We have no reason to doubt the credibility and observations of the
team, and neither have we heard of substantiated allegations about them.

Aside from the Bar monitoring team and its report, since that day many other
eyewitness accounts have emerged, including photos and videos that speak for
themselves. Significantly, on this occasion, even media members were not spared.
We even had the embarrassing incident where Al-Jazeera’s reporter Harry Fawcett
had to report via Skype from his iPad as his team’s video camera was smashed by
police while they were recording police brutality against protestors.

Most importantly, many previous Suhakam inquiries — the November 5, 2001 Kesas
Highway Incident, the June 17, 2003 Kundasang Incident, the May 28, 2006 KLCC
Incident, the May 27, 2008 Persiaran Bandar Mahkota Cheras 1 Incident, the July
9, 2011 Bersih 2.0 Incident — found that there was excessive use of force by the
police, and evidence of police brutality. Numerous complaints by victims led to
the said inquiries, the findings of which thereafter vindicated the complaints
leading to damning conclusions about police conduct. These many reports do not
just show isolated instances of police brutality: Bersih 3.0 was not a one-off.
There is a pattern of regular use of excessive force and brutality in violation
of human rights by the Royal Malaysian Police Force. Despite these many reports
by Suhakam, and despite the findings of the Royal Commission to Enhance the
Operation and Management of the Royal Malaysia Police, the police have not made
any serious attempts to school themselves in the prevention of human rights
violations.

Regrettably, Roger is sceptical of the 80 monitors appointed by the Bar Council
because they are not named, as he “would certainly like to know their political
inclinations” to satisfy himself that they “were independent-minded in their
conclusions”. Firstly, five widely-respected senior members of the Bar, who were
a part of a “roving” team of monitors, were named and had their observations
separately documented: Christopher Leong (vice-president of the Malaysian Bar),
Steven Thiru (treasurer of the Bar Council), Datuk Ramachelvam Manimuthu, Ramdas
Tikamdas, and Roger Chan Weng Keng. Apparently it is not enough that lawyers of
this calibre verify and endorse the report.

More importantly, what does one’s political inclination have to do with stating
a fact about whether Malaysian citizens were assaulted and battered by the
police, and whether there was excessive use of force in accordance with
international human rights standards?

Whilst Roger Tan has left the Bar Council, it is unfair to assume that the Bar
Council would not have trained these monitors properly bearing in mind this is
not the first assembly monitoring mission dispatched by the council. His
flippant remarks greatly disparage those members of the Bar who volunteered to
serve on the monitoring team, implying as it does that they would allow their
personal prejudice to influence their professional duties. It is part of our job
as lawyers to put aside our personal prejudice in order to advance the cause of
justice.

Rather conveniently, whilst casting these aspersions on others, Roger himself
does not reveal his strong affiliations to a particular political party.
Employing Roger’s logic, one wonders, perhaps, whether commentators in The Star,
for example, should also be required to divulge their political affiliations and
leanings before their opinion pieces are published. But we will not venture into
the realm of the fallacy of argumentum ad hominem to discredit the views of
others, as Roger disappointingly has.

Roger’s comments suggest that we should not immediately make conclusions even if
we see a group of uniformed policemen beating up an unarmed citizen who lies
helpless on the ground because there were extenuating circumstances. And even if
numerous members of the Bar, members of the public and journalists documented
such incidents of brutality. The fact is, the police are supposed to treat each
person they arrest as if they are innocent until proven guilty. The police
should only use reasonable force in arresting someone. If they have to resort to
force, they should only use force that is proportionate to the threat faced, and
only enough to ensure the person’s arrest.

Roger cites the example of the Bar postponing its EGM with regards to the VK
Lingam video clip scandal while it waited for the Royal Commission of Inquiry to
complete its task. Roger however seems to overlook the fact that the video clip
sparked the groundbreaking Walk for Justice in September 2007 which saw about
2,000 lawyers marching to the PM’s office. The other difference with that
example is that with Bersih 3.0, the Bar monitoring team saw police brutality
with their own eyes, and not through a video clip. It is obvious that this is
not a comparable precedent.

What is this obsession with Anwar Ibrahim?

In his third criticism, Roger insists that the Bar should similarly demand an
apology from Anwar because he was reported to have instigated the removal of the
barrier. But Roger must understand that one must distinguish between credible
first-hand reports by Bar monitors, and accusations by obviously partisan
members of Barisan Nasional and its media.

This is where Roger shows an obvious inconsistency — whilst saying that the
eyewitness accounts of the Bar’s monitoring team are insufficient to be relied
upon, he says that the Bar should demand an apology from Anwar for an incident
that no one on the Bar’s monitoring team witnessed. Despite the many eyewitness
blog entries, photos and videos, there has been no compelling evidence either
way to show who removed the barriers, or whether their removal was facilitated
by the police, public or opposition members. On what basis is Roger suggesting
that the Bar demand an apology from Anwar?

Let us for one moment set aside the question whether the court order prohibiting
entry into Dataran Merdeka was unnecessary, wrong in law and unconstitutional.
Let us also assume the barriers in question were covered by the court order.
Even assuming that the order was validly executed by the police, did it
necessitate the extreme use of non-lethal force to arrest and disperse the small
group of people who breached the barrier? Bearing in mind that the Bar’s
resolution was on police misconduct, and not about who removed the barrier, it
is even more disconcerting that Roger implies that the police may excessively
and disproportionally tear-gas and beat the innocent just to get at those who
did breach the barrier.

The Bar need not have condemned the protestors

Finally, Roger develops the basis of the criticism that the Bar is not
“independent” by stating the Bar failed to condemn with equal vigour lay members
of the public who he says acted “like rioters and anarchists”. Many labour under
the misapprehension that to be “independent” an organisation must always be even
handed and restrained in one’s remarks. But that is a fallacy. And it is an even
greater fallacy when it concerns injustice.

Police brutality is a violation of a human right. A violation of any human right
is manifest injustice. Police brutality per se is an injustice. The presence of
police brutality has tainted the Royal Malaysian Police as surely as a drop of
blood stains a uniform. An injustice perpetrated by even one from an institution
set up to serve the cause of justice deserves the harshest condemnation. There
cannot be any restraint in condemning abuse of power. As a police force meant to
be independent and professional, the Royal Malaysian Police are kept to higher
standards than lay members of the public. So the Bar cannot be swayed by fear or
favour; it cannot be hesitant or even handed in condemning an injustice that is
police brutality. Here is an Executive institution that is well-funded and
well-staffed with wide powers taking action against unarmed people. It is state
against the individual person, and the Bar stands — must stand — for the latter.

What Roger and many who adopt this line of criticism fail to explain is how the
condemnation of police brutality amounts to an endorsement of the opposition.
This criticism reveals more of their own political prejudice than that of the
Bar. Their criticism strongly suggests a belief that criticism of the police is
the equivalent of criticism against the political party in government. Their
criticism also reveals that they are the sort who think that perception is
reality.

It is only those who are so immersed and drenched in politics that adopt such a
worldview. The Bar’s criticism and the facts it relies on are an inconvenience
to their perception. Ultimately these popular criticisms against the Bar are not
borne of logic or facts, but a need to feel good.

There is one further reason why we would not have voted for a resolution that
condemned those members of the public who turned violent. The fact is that most
thinking Malaysians who have access to the alternative media — and therefore do
not rely solely on the bare-faced propaganda of our mainstream print and
broadcast media — are not convinced that these so-called “rioters” are as
blameworthy as the police.

The police put razor wire across our city roads, turning Kuala Lumpur into a war
zone before any violence had ensued. The police obtained a totally unnecessary
court order prohibiting entry for four days into Dataran Merdeka, without any
notice or opportunity to the organisers of Bersih 3.0 to present their case
despite ample time for them to do this. Then, when the disturbance started, it
was the police who shot tear gas behind and in front of retreating protestors so
that they were boxed in rather than allowed to disperse. Who ordered the closure
of the nearby LRT stations so as to prevent people from dispersing? Who ordered
the destruction of cameras belonging to journalists, and the reported censorship
of Al Jazeera and the BBC? What justified the four hours of continued attacks on
people who were already dispersing or having dinner? All this done against
fellow Malaysians, who until the very end had taken part in an almost perfect
rally.

As pointed out by Roger, the Bar’s resolution did expressly state that the Bar
is concerned with and does not countenance acts of violence by rally
participants, and are concerned by reports that police barriers were breached.
In our view, that says enough. We did not hear any suggestions made at the EGM
to amend the resolution. All the dissenters at the EGM agreed in principle that
they were against police brutality. What more needs to be said really, seeing as
the police were already actively identifying and hunting down those whom they
say committed offences during the rally? The police had even stated that they
would conduct a house-to-house search for these individuals. Compare this with
the lack of action in identifying, let alone condemning and punishing, the
police officers who committed violations of duty and human rights.

The Bar’s resolution was proper

The Bar was entitled and correct to issue the statements it did, and to pass the
resolution it did. The resolution is fair in all the circumstances and was
carefully worded throughout. The facts that it had gathered itself through the
Bar’s own members were set forth frankly and properly, and the urgent action
that was needed due to the unprecedented police brutality seen on that day was
set out in an appropriate and immediate manner.

We are proud to have supported the Bar’s resolution and have no qualms about the
Bar’s continued independence. We believe the vast majority of the Bar are
totally in support of the resolution, and the comments against the resolution
are the isolated voices of a few in the wilderness given undue prominence by
propaganda organisations posing as the mass media.

It is telling that Roger states that “removing the barrier was the trigger
point” and adds that it is “common sense” that “whoever first raises his hand
against the other is the most blameworthy”. Words do not suffice to describe the
disingenuous nature of the suggestion that the removal of the barrier is even
remotely comparable to the brutal actions of the police. In any case, there have
been no reports of barriers being “breached” in front of the Bar Council, on
Leboh Pasar Besar — yet even then, water cannons and tear gas were fired there.
Roger fails to acknowledge the clear reality that police reaction was not
localised to Dataran Merdeka or to the participants there, and that other than
at the Jalan Raja/Tun Perak junction, it was the police who struck first.

The actions of some members of the police force on that day were incidences of
injustice that were so blatant that it should be impossible for anyone who
purports to stand up for justice to remain silent. We have already seen
concerted efforts — by the ruling coalition, the police, and those who are too
politically partisan to distinguish clear acts of injustice from their political
posturing — to distract from the injustice highlighted by the Bar’s resolution
by attacking the Bar and casting aspersions on those who are doing no more than
reporting what they saw with their own eyes.

The Bar must continue to fight for those who cannot speak up for themselves, and
whose rights are oppressed by the might of the state. That is our duty, and one
that we hope members of the Bar will continue to discharge without fear or
favour. - loyarburok.com